HON’BLE MR.TARAPADA GANGOPADHYAY, MEMBER 

          This Appeal U/s 15 of the C.P.Act 1986 is directed by the OP2-Nursing Home against the Order dated 3.2.2017 passed by the ld. D.C.D.R.F., Nadia in Complaint Case No. C.C. 2015/103, directing the OPs 2 and 3 each to pay to the Complainant, within one month from the date of order, Rs.2 lakhs (Rupees two lakhs) as compensation and Rs.2500/- (Rupees two thousand five hundred) as cost, failing which the OPs 2 and 3 shall be liable to pay interest @ 8% per annum to the Complainant for the entire period of default.

          Brief facts of the case, as emanating from the materials on record, are that the Complainant/Respondent 1 with complaint of abdominal pain visited OP1-Doctor on 21.8.2013 who, upon perusal of the USG report, advised the Complainant to take admission at  OP2-Nursing Home for operation, and accordingly the complainant took admission at OP 2 –Nursing Home on 21.8.2013 where Op 1 and 3-Doctors conducted operation and discharged the Respondent 1/Complainant. But after such operation the condition of the Respondent 1/Complainant  having not improved the Respondent1-Complainant got readmitted to the OP2-Nursing Home on 27.8.2013, 28.8.2013 and 4.9.2013 as per advice of Respondent 2/OP1-Doctor, but still the condition of the patient did not improve. Having got no relief after operation the Respondent 1-Complainant visited Apollo Gleneagles Heart Clinic  , Kolkata for MRCP the report  dated 11.9.2013 of which reported “Obstructive jaundice due to CHD stricture”. Then the Respondent 1/Complainant visited the Respondent4-Doctor at Anandalok Hospital, Kolkata on 13.9.2017 and Respondent 4/OP 4 Doctor conducted further operation after which the condition of the Respondent1/Complainant improved. It is alleged in the Petition of Complainant that in course of Cholecystectomy by OPs 1 and 3 –Doctors on 21.8.2013 the OPs 1 and 3-Doctors “negligently Dilated CBD” of the complainant for which the Respondent 1/Complainant suffered from “obstructive jaundice due to CHD stricture” as revealed from the MRCP report dated 11.9.2013 as available on records. With the aforesaid factual matrix the Complainant moved the Complaint Case concerned before the ld. District Forum which passed the order in the aforesaid manner.  Aggrieved by such order the OP2-Nursing Home has preferred the instant Appeal.

          Ld. Advocate for the Appellant/OP2-Nursing Home submits that the ld. District Forum passed the order impugned without taking into consideration the settled principle of law that the Respondent1-Complainant initially has to prove negligence on the part of the Hospital with evidence of expert which the Complainant has failed in the instant case.        

          Ld. Advocate  continues that the ld. District Forum observed without relying on any cogent evidence that OP2-Nursing Home and Op3-Doctor failed to provide standard treatment protocol to the Complainant.

          Ld. Advocate also submits that the ld. District Forum illegally held that the Appellant/Op2 is  liable without assigning any reason supported by cogent evidence.

          Ld. Advocate adds that post cholecystectomy obstructive jaundice is not unusual but a known complication for which the concerned doctor should not be held liable.

          Ld. Advocate further submits that ld. District forum passed the order impugned not on the basis of proof but on the basis of perception and inference, which is contrary to the settled principle of law in this respect.

          Ld. Advocate refers to the decision of Hon’ble National Commission in Dr. C.P.Sreekumar V Sri S. Ramanujan, reported in 2009 CTJ 581.

          Ld. Advocate concludes that in view of the aforesaid submissions the instant Appeal should be allowed and the order impugned be set aside.

          On the other hand, ld. Advocate for the Respondent1/Complainant submits that the post operative “obstructive jaundice due to CHD stricture” as revealed from MRCP report dated 11.9.2013 of Apollo Gleneagles Heart Clinic as available on records , clearly indicates absence of due and diligent care on behalf of the respondent3/OP3-Doctor , that as the Respondent 3-OP 3 Doctor was attached with the Appellant /OP2-Nursing Home for providing careful and diligent medical service to the patient so the Appellant-OP2-Nursing Home also cannot shake off its vicarious liabilities.

          Ld. Advocate also submits that the Appellant/OP2-Nursing Home discharged the patient concerned despite the suffering of the patient concerned from jaundice with low value of bilurubin being ‘4.5 mg %’ , which also indicates lack of proper and diligent care on behalf of the doctor concerned and also on behalf of the Appellant/OP2 –Nursing Home.

          Ld. Advocate concludes that the aforesaid submission clearly indicates absence of careful and diligent service on behalf of the Respondent3/OP3-Doctor and vicarious liability on behalf of the Appellant/OP2-Nursing Home.

          Heard both the sides , considered their respective submissions and perused the materials on record.

          The ‘Impression’ of the MRCP report dated 11.9.2013 of Apollo Gleneagles Heart Clinic, as referred to above, reveals “obstructive  jaundice due to CHD stricture”, i.e., the obstructive jaundice due to “common Hepatic Duct” stricture i.e. abnormal narrowing of duct in the body, which clearly indicates absence of application of proper skill and diligent care on behalf of the Respondent3/OP3-Doctor, and hence Respondent3/OP3-Doctor is liable for absence of skillful and diligent care on behalf of him.

          It is revealed from the Article titled “Treatment of post cholecystectomy bile duct stricture” by Adarsha Chaudhury, Department of Surgical  Gastroenterology, Sir Ganga Ram Hospital, New Delhi, that post laparoscopic Cholecystectomy bile duct injuries are more complex  as they are present with persistent  bile leak and may involve multiple ducts.

          It is well-settled by the Hon’ble Supreme Court in V. Kishan Rao V. Nikhil Super Speciality Hospital & Anr. that expert-opinion is not mandatory in all cases where deficiency is apparent on record as in the case on hand.

          The foregoing discussion and evidence of MRCP  indicate deficiency in skillful and diligent service on behalf of the Respondent3/OP3-Doctor and vicarious liability of the Appellant/OP2-Nursing Home.

          Consequently, the instant Appeal deserves to be dismissed and the same is dismissed accordingly, and the impugned order is affirmed.